Taupau v Police

[2019] NZHC 2237

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000054

[2019] NZHC 2237

BETWEEN

MIKA TAUPAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 September 2019
Counsel:	GD Prentice for Appellant SF Gilbert for Respondent
Judgment:	6 September 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 6 September 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

GD Prentice, Hamilton. Crown Solicitor, Hamilton.

TAUPAU v POLICE [2019] NZHC 2237 [6 September 2019]

[1]                 On 25 June 2019, Judge A S Menzies sentenced Mr Mika Taupau for driving while disqualified, driving with excess breath alcohol, and intentional damage.1 The Judge imprisoned Mr Taupau for 15 months and disqualified him from driving for three years. Mr Taupau appeals the disqualification period; he does not appeal the prison sentence.

[2]                 The Judge did not provide reasons in relation to the disqualification period, most likely because there was significant argument as to whether Mr Taupau should go to jail. So, the Judge focussed on that aspect.

[3]                 Section 31 of the Sentencing Act 2002 requires a Judge to give reasons for the imposition of a sentence or any other means of dealing with the defendant. It follows some justification for the length of the disqualification period ought to have been given, however brief, in a busy list court. For this reason, I approach the task afresh.

[4]                 Mr Taupau committed the offences in the early hours of 18 October 2018. A checkpoint revealed breath alcohol of 790 micrograms. Mr Taupau was subject to release conditions and an 18-month disqualification period for driving with excess breath alcohol in 2017. The offences represent Mr Taupau’s ninth conviction for driving with excess breath alcohol and eighth for driving while disqualified.

[5]                 Mr Taupau contends his history reveals some progress because he did not drive with excess breath alcohol between 2013 and August 2017. I disagree. Mr Taupau spent at least some of this time in prison (through a series of short prison sentences).

[6]                 Mr Taupau submits the offending was unremarkable; there was no bad driving. I accept this submission but note the presence of another aggravating factor. As observed, Mr Taupau was subject to release conditions for like offending.

[7]                 Mr Taupau also submits the pre-sentence report has positive aspects. For example, Mr Taupau’s employer  “spoke  highly  of  him”.  His  partner  described Mr Taupau as “wonderful”. The latter does not have the purchase it might otherwise

1      Police v Taupau [2019] NZDC 12235.

attract.   Mr Taupau  has  a  history  of domestic violence.    The former has general relevance.

[8]                 Both parties invite attention to a host of cases, including R v Stone2 and Russell v Police.3 Mr Stone drove with a breath alcohol level of 723 micrograms. There was no bad driving, but the car was “overloaded” with young people. The excess breath alcohol conviction was Mr Stone’s eighth. Mr Stone received home detention. Mr Russell drove with a breath alcohol level of 930 micrograms. There was no bad driving in his case either.  The  excess breath  alcohol  conviction was  Mr Russell’s fourteenth. Mr Russell received a 22-month prison sentence. Both men received three-year disqualification periods.

[9]                 Mr Taupau contends a three-year disqualification period is generally reserved for offenders with a history of bad driving in addition to drink driving. It is not clear the cases bear this out, but even if they do, Mr Taupau has convictions for recklessly operating a car, dangerous driving and failing to stop. True, all of these are a little dated, but in conjunction with Mr Taupau’s history of drink driving and driving while disqualified, they augment the obvious: Mr Taupau has a bad record of offending contrary to the Land Transport Act 1998.

[10]              Given everything, I reach the same conclusion as Judge Menzies. Mr Taupau’s breath alcohol level was high. Mr Taupau was on release conditions for like offending. His record is unsatisfactory. And, Stone and Russell are broadly like Mr Taupau’s circumstances. A three-year period is stern, but that is what is now required.

[11]The appeal is dismissed.

……………………………..

Downs J

2      R v Stone [2009] NZCA 539.

3      Russell v Police HC Whangarei CRI-2009-488-46, 15 December 2009.